Any person who willfully breaks, damages, destroys, uncovers, defaces or tampers with any structure, appurtenance or equipment which is part of the sewage system maintained by the West New York Municipal Utilities Authority or the Town of West New York shall be liable for a fine of not more than $500 or imprisonment for not exceeding 90 days.
When a discharge of wastes causes an obstruction, damage or any other impairment to Authority facilities, the Authority may assess a charge against the discharger for the work required to clean or repair the facility and add such charge to the user's wastewater service charges.
A. 
Whenever the WNYMUA finds that any person is in violation of any provisions of this chapter, it shall:
(1) 
Issue an order requiring any such person to comply in accordance with Subsection B of this section;
(2) 
Bring a civil action in accordance with Subsection C of this section;
(3) 
Levy a civil administrative penalty in accordance with Subsection D of this section;
(4) 
Bring an action for a civil penalty pursuant to § 331-74; or
(5) 
Petition the County Prosecutor or Attorney General to bring a criminal action pursuant to § 331-75.
B. 
Order. Whenever the WNYMUA finds that any person is in violation of any provision of this chapter, the Authority may issue an order:
(1) 
Specifying the provision or provisions of this chapter or the rule, regulation, water quality standard, effluent limitation or permit of which he is in violation;
(2) 
Citing the action which caused such violation;
(3) 
Requiring compliance with such provision or provisions; and
(4) 
Giving notice to the person of his right to a hearing on the matters contained in the order.
C. 
Civil action.
(1) 
The Authority is authorized to commence a civil action in Superior Court for appropriate relief for any violation of this chapter or of a permit. Such relief may include, singly or in combination:
(a) 
A temporary or permanent injunction;
(b) 
Assessment of the violator for the reasonable costs of any investigation, inspection or monitoring survey which led to the establishment of the violation and for the reasonable costs of preparing and litigating the case under this subsection;
(c) 
Assessment of the violator for any reasonable cost incurred by the WNYMUA in removing, correcting or terminating the adverse effects upon water quality resulting from any unauthorized discharge of pollutants for which the action under this subsection may have been brought;
(d) 
Assessment against the violator of compensatory damages for any loss or destruction of wildlife, fish or aquatic life, or other natural resources, and for any other actual damages caused by an unauthorized discharge; or
(e) 
Assessment against a violator of the actual amount of any economic benefits accruing to the violator from a violation. Economic benefits may include the amount of any savings realized from avoided capital or noncapital costs resulting from the violation; the return earned or that may be earned on the amount of avoided costs; any benefits accruing to the violator as a result of a competitive market advantage enjoyed by reason of the violation; or any other benefits resulting from the violation.
(2) 
Assessments under Subsection C(1)(d) of this subsection shall be paid to the New Jersey State Treasurer, except that compensatory damages shall be paid by specific order of the Court to any persons who have been aggrieved by the unauthorized discharge. Assessments pursuant to actions brought by the Authority under Subsection C(1)(b), (c) and (e) of this subsection shall be paid to the WNYMUA as the Authority.
D. 
Civil administrative penalty.
(1) 
The Authority may, after consultation with the appropriate compliance officer designated by the NJDEP, issue a civil administrative penalty for any violation of the New Jersey Water Pollution Control Act, as the same may be amended from time to time, P.L. 1977, c. 74 (N.J.S.A. 58:10A-1 et seq.), including a violation of any rule, regulation or pretreatment standard adopted by the Authority, or assess, by civil administrative order, any cost recoverable pursuant to Subsection C of Section 10 of that Act,[1] including the reasonable costs of investigation, inspections and preparing and litigating the case before an Administrative Law Judge pursuant to this section, except assessments for compensatory damages and economic benefits. Notice of the penalty or assessments shall be given to the violator in writing by the Authority, and payment of the penalty or assessment shall be due and payable, unless a hearing is requested in writing by the violator, within 20 days of receipt of notice. If the hearing is requested, the penalty or assessment shall be deemed a contested case and shall be submitted to the Office of Administrative Law for an administrative hearing in accordance with Sections 9 and 10 of P.L. 1968, c. 410 (N.J.S.A. 52:14B-9 and 52:14B-10). Any amounts assessed under this section shall fall within a range established by the Authority for violations of similar type, seriousness and duration, as set forth in the Authority's Enforcement Response Plan, attached and incorporated into these rules and regulations.[2]
[1]
Editor's Note: See 58:10A-10c.
[2]
Editor's Note: The Enforcement Response Plan is on file in the town offices.
(2) 
Following conclusion of administrative hearing.
(a) 
Upon conclusion of an administrative hearing held pursuant to Subsection 2 of P.L. 1991, c. 8 (N.J.S.A. 58:10A-10.5) [see also Subsection D(1) above], the Administrative Law Judge shall prepare and transmit a recommended report and decision on the case to the Authority and to each party of record, as prescribed in Subsection c of Section 10 of P.L. 1968, c. 410 (N.J.S.A. 52:14B-10). The Authority shall afford each party of record an opportunity to file exceptions, objections and replies thereto and to present arguments, either orally or in writing, as required by the Authority.
(b) 
After reviewing the record of the Administrative Law Judge, and any filing received thereon, but no later than 45 days after receipt of the record and decision, the Authority shall adopt, reject or modify the recommended report and decision. If the Authority fails to modify or reject the report within the forty-five-day period, the decision of the Administrative Law Judge shall be deemed adopted as the final decision of the Authority and the recommended report and decision shall be made as part of the record in the case. For good cause shown, and upon certification to the Director of the Office of Administrative Law and the Authority, the time limits established herein may be extended.
(3) 
A final decision or order of the Authority shall be in writing or stated in the record.
(a) 
A final decision shall include separately stated findings of fact and conclusions of law, based upon the evidence of record at the hearing of the Administrative Law Judge. Findings of fact shall be accompanied by a precise and explicit statement of the underlying facts supporting the findings. A final decision or order may incorporate by reference any and all recommendations of the Administrative Law Judge.
(b) 
Parties of record shall be notified either by personal service or by mail of any final decision or order. Upon request, a copy of the decision or order shall be delivered or mailed forthwith by registered or certified mail to each party of record and to the parties' attorney-of-record.
(c) 
A final decision or order shall be effective on the date of delivery or mailing, whichever is sooner, to the parties or parties of record, or shall be effective on any date thereafter, as the Authority may provide in the decision or order. The date of delivery or mailing shall be stamped on the face of the final decision or order. A final decision or order shall be considered a final agency action, and shall be appealable in the same manner as the final agency action of a state department or agency.
(4) 
Appeal of civil administrative penalty or assessment; failure to pay.
(a) 
A person appealing a civil administrative penalty or assessment levied in accordance with Section 2 of P.L. 1991, c. 8 (N.J.S.A. 58:10A-10.5) [see also Subsection D(1) above], whether contested as a contested case pursuant to P.L. 1968, c. 410 (N.J.S.A. 52:14B-1 et seq.), or by appeal to a court of competent jurisdiction, shall, as a condition of filing the appeal, post with the Authority a refundable bond or other security approved by the Authority, in the amount of the civil administrative penalty or assessment levied pursuant to the civil administrative hearing. Such bond or other security shall be issued by the sureties and in a form reasonably accepted by the Authority and the Authority's legal counsel. If the civil administrative penalty or assessment is upheld in whole or in part, the Authority shall be entitled to a daily interest charge on the amount of the judgment amount from the date of the posting of the security with the Authority until the amount is paid in full. The rate of interest shall be established by the New Jersey Supreme Court for interest rates on judgments, as set forth in the Rules Governing the Courts of the State of New Jersey.
(b) 
A person who is assessed a civil administrative penalty or is subject to an assessment levied pursuant to Section 2 of P.L. 1991, c. 8 (N.J.S.A. 58:10A-10.5) [see also Subsection D(1)], and fails to contest or pay the penalty or assessment or fails to enter into a payment schedule with the Authority within 30 days of the date the penalty or assessment is due shall be subject to an interest charge on the amount of the penalty or assessment from the date the amount was due and owing. The rate of interest shall be that authorized pursuant to Subsection D(4)(a).
(c) 
Any person who fails to pay a civil administrative penalty or assessment, in whole or in part, and when due and owing or who fails to agree to a payment schedule shall be subject to the civil penalty provisions of Subsection e of Section 5 of P.L. 1977, c. 74 (N.J.S.A. 58:10A-10).
(d) 
A civil administrative penalty or assessment imposed pursuant to a final order:
[1] 
May be collected or enforced by summary proceeding in a court of competent jurisdiction in accordance with the Penalty Enforcement Law (N.J.S.A. 2A:58-1 et seq.); or
[2] 
Shall constitute a debt of the violator, and the civil administrative penalty may be docketed with the Clerk of the Superior Court and shall have the same standing as the new judgment docketed pursuant to N.J.S.A. 2A:16-1.
(5) 
The Authority shall recover from the violator any cost or fee paid to the Office of Administrative Law for the cost of an administrative hearing provided pursuant to Subsection D(1) of this section, along with such other costs as may be recoverable for preparing and litigating the case, so long as the Authority is the prevailing party. An assessment for hearing costs shall be included in the final decision or order issued by the Authority.
(6) 
For purposes of implementing and otherwise imposing civil administrative penalties as set forth herein above, the Authority may designate the Executive Director as the administrative officer for imposing the aforesaid civil administrative penalties.
(7) 
The Authority shall assess a minimum mandatory civil administrative penalty of $100 for each effluent parameter omitted on a discharge monitoring report required to be submitted to the Authority, and each day during which the effluent parameter information is overdue shall constitute an additional, separate and distinct defense, except that in no instance shall the total civil administrative penalty assessed herein exceed $50,000 per month for any one discharge monitoring report. The civil administrative penalty assessed herein shall accrue as of the date on which the discharge monitoring report was due and shall continue to accrue for 30 days. The Authority, by and through its Administrative Coordinator and/or Executive Director, may continue to assess civil administrative penalties beyond the thirty-day period until the submission of the overdue discharge monitoring report or overdue information. A permittee may contest the assessment of the civil administrative penalty required to be assessed herein by notifying the Authority in writing, by certified mail, return receipt requested, within 30 days of the date on which the effluent parameter information was required to be submitted to the Authority, of the existence of any extenuating circumstances which is beyond the control of the permittee, including circumstances that prevent a timely submission of the discharge monitoring report or portion thereof or, if the civil administrative penalty is imposed because of an inadvertent omission of one or more effluent parameters, the permittee may submit, without liability, for a civil administrative penalty assessed herein, the omitted information within 10 days of receipt by the permittee of notice of omission of the parameter or parameters.
The Authority may revoke any wastewater discharge permit or cause to be terminated wastewater service to any premises if, after proper order or direction from the Authority, a violation of any provision of this chapter is found to exist; a discharge of wastewater causes or threatens to cause a condition of contamination, pollution or nuisance as defined in this chapter; or there is a failure of a user to take the remedial steps required.
A. 
Whenever the Authority finds that any person has violated or is violating these rules and regulations or a permit, order or agreement issued hereunder, or that any person has failed to pay a civil administrative penalty or assessment, in whole or in part, when due and owing, or has failed to agree to a payment schedule therefor, the Executive Director is authorized, through legal counsel, to commence a civil action in the Superior Court of New Jersey, Bergen County, in a summary proceeding pursuant to the Penalty Enforcement Law (N.J.S.A. 2A:58-1 et seq.) for the assessment of a civil penalty not to exceed $50,000 per day of such violation, with each day's continuance of a violation to constitute a separate violation. The Authority may also seek an assessment of costs, interest charges and actual economic benefits accruing to the violator from the violation.
B. 
The decision as to whether to seek a court order imposing such a penalty and the amount of such a penalty shall be made with due regard given to the seriousness of the particular violation and the seriousness of the conduct which gave rise to the violation. The amount of the civil penalty to be sought in connection with any such civil action shall be determined in accordance with the Enforcement Response Plan approved by the Authority.
C. 
Anything in Subsections A and B of this section to the contrary notwithstanding, the Executive Director is authorized to issue a summons to any person who violates P.L. 1977, c. 74 (N.J.S.A. 58:10A-1 et seq.), or any rule, regulation or pretreatment standard adopted by the Authority if the amount of the civil penalty assessed is $5,000 or less. The summons shall be enforceable in accordance with the Penalty Enforcement Law, N.J.S.A. 2A:58-1 et seq., in the Municipal Court of the territorial jurisdiction in which the violation occurred. The summons shall be signed and issued by the Administrative Coordinator and/or Executive Director or, in his absence, the Chief Engineer. Proceedings before, and appeals from a decision of, a Municipal Court shall be in accordance with the Rules Governing the Courts of the State of New Jersey. Of the penalty amount collected pursuant to an action brought in a Municipal Court pursuant to this section, 10% shall be paid to the municipality or municipalities in which the Court retains jurisdiction for use for Court purposes, with the remainder to be retained by the Authority.
A. 
The Administrative Coordinator and/or the Executive Director is authorized to petition the Hudson County Prosecutor or the Attorney General for the State of New Jersey to bring a criminal action against any person suspected of being in violation of any law subjecting the violator to criminal penalties, which violation has caused or will cause an impact upon the Authority, its facilities or the operation of same. Such action shall be taken pursuant to the provisions of Section 3 of P.L. 1990, c. 28 [N.J.S.A. 58:10A-6(i)], and the penalties to be sought shall be in accordance with Section 5 of P.L. 1990, c. 28 [N.J.S.A. 58:10A-10(f)].
B. 
Any person who negligently violates the New Jersey Water Pollution Control Act (Act), including making a false statement, representation or certification in any application, record or other document filed or required to be maintained under this Act or by falsifying, tampering with or rendering inaccurate any monitoring device or method required to be maintained pursuant to this Act, or by failing to submit a discharge monitoring report, or any portion thereof, required pursuant to this Act, shall, upon conviction, be guilty of a crime of the fourth degree and shall, notwithstanding the provisions of Subdivision b of N.J.S.A. 2C:43-3, be subject to a fine of not less than $5,000 nor more than $50,000 per day of violation or by imprisonment, or by both.
A. 
The Authority may assess a civil administrative penalty and civil penalty pursuant to this section of not more than $50,000 for each violation of each provision of the Water Pollution Control Act and for violations of any rule, effluent limitation, administrative order or permit issued pursuant thereto. The Authority shall assess a minimum mandatory civil administrative penalty for violations which occur after June 30, 1991, in an amount:
(1) 
Not less than $5,000 for each violation that causes a violator to be or continue to be a significant noncomplier; or
(2) 
Not less than $1,000 for each serious violation.
B. 
Each violation of any provision of the Water Pollution Control Act or any rule, effluent limitation, administrative order or permit issued pursuant thereto shall constitute an additional, separate and distinct violation. In addition, the nonpermitted discharge of each separate pollutant shall constitute an additional, separate and distinct violation.
C. 
Each day during which a violation as set forth in Subsection B above continues shall constitute an additional, separate and distinct violation.
D. 
To assess a civil administrative penalty or civil penalty pursuant to this section, the Authority shall:
(1) 
Identify the penalty range within the matrix in Subsection E below by:
(a) 
Determining the seriousness of the violation pursuant to Subsection F below; and
(b) 
Determining the conduct of the violator pursuant to Subsection G below.
(2) 
The civil administrative penalty or civil penalty shall be at the midpoint of the range within the matrix in Subsection E below, unless adjusted pursuant to Subsection H below.
E. 
The matrix of ranges of civil administrative penalties and civil penalties is as follows:
Seriousness
Conduct
Major
Moderate
Minor
Major
$40,000- $50,000
$30,000- $40,000
$15,000- $25,000
Moderate
$30,000- $40,000
$10,000- $20,000
$3,000- $7,000
Minor
$15,000- $25,000
$3,000- $7,000
$1,000- $2,500
F. 
The Authority shall determine the seriousness of the violation as major, moderate or minor as set forth in Subsection F(1) through (3) below. Nothing in the description of seriousness in one level shall prevent the Authority from assigning a different level of seriousness to the violation.
(1) 
"Major" shall include:
(a) 
Any violation of an effluent limitation which is measured by concentration or mass for any discharge exceeding the effluent limitation (set forth in a permit or administrative order) as follows:
[1] 
By more than 50% for a hazardous pollutant; or
[2] 
By more than 100% for a nonhazardous pollutant.
(b) 
Any other violation not included in Subsection F(1)(a) above which either:
[1] 
Has caused or has the potential to cause serious harm to human health or the environment; or
[2] 
Seriously deviates from the requirements of the Water Pollution Control Act and for violations of any rule, effluent limitation, administrative order or permit issued pursuant thereto. Serious deviation shall include, but not be limited to, those violations which are in complete contravention of the requirement or, if some of the requirement is met, which severely impair or undermine the operation or intent of the requirement.
(2) 
"Moderate" shall include:
(a) 
Any violation, other than a violation of an effluent limitation identified in Subsection F(1)(b) below, which has caused or has the potential to cause substantial harm to human health or the environment.
(b) 
Any violation of an effluent limitation which is measured by concentration or mass of any discharge exceeding the effluent limitation as follows:
[1] 
By 20% to 50% for a hazardous pollutant; or
[2] 
By 40% to 100% for a nonhazardous pollutant.
(c) 
Any violation, other than a violation of an effluent limitation identified in Subsection F(2)(b) above, which substantially deviates from the requirements of the Water Pollution Control Act for violations of any rule, effluent limitation, administrative order or permit issued pursuant thereto. Substantial deviation shall include, but not be limited to, violations which are in substantial contravention of the requirements or which substantially impair or undermine the operation or intent of the requirement.
(3) 
"Minor" shall include:
(a) 
Any violation, other than a violation of an effluent limitation identified in Subsection F(3)(b) below, not included in Subsection F(1) or (2) above; or
(b) 
Any violation of an effluent limitation which is measured by concentration or mass for any discharge exceeding the effluent limitation (set forth in a permit or administrative order) as follows:
[1] 
By less than 20% for a hazardous pollutant; or
[2] 
By less than 40% of a nonhazardous pollutant.
G. 
The Authority shall determine the conduct of the violator as major, moderate or minor as follows:
(1) 
Major shall include any intentional, deliberate, purposeful, knowing or willful act or omission by the violator.
(2) 
Moderate shall include any unintentional but foreseeable act or omission by the violator.
(3) 
Minor shall include any other conduct not included in Subsection G(1) or (2) above.
H. 
The Authority may, in its discretion, move from the midpoint of the range to an amount no greater than the maximum amount nor less than the minimum amount in the range on the basis of the following factors:
(1) 
The compliance history of the violator.
(2) 
The number, frequency and severity of the violation(s).
(3) 
The measures taken by the violator to mitigate the effects of the current violations or to prevent future violations.
(4) 
The deterrent effect of the penalty.
(5) 
The cooperation of the violator in correcting the violation, remedying any environmental damage caused by the violation and ensuring that the violation does not reoccur.
(6) 
Any unusual or extraordinary costs or impacts directly or indirectly imposed on the public or the environment as a result of the violation.
(7) 
Any impacts on the receiving water, including stress upon the aquatic biota, or impairment of receiving water uses, such as for recreational or drinking water supply, resulting from the violation.
(8) 
Other specific circumstances of the violation or violations.
A. 
The Authority may assess a civil administrative penalty pursuant to this section against each violator who submits inaccurate information or who makes a false statement, representation or certification in any application, record or other document required to be submitted or maintained, or who falsifies, tampers with or renders inaccurate any monitoring device or method required to be maintained under the Water Pollution Control Act or the New Jersey Underground Storage of Hazardous Substances Act or any rule, water quality standard, effluent limitation, administrative order or permit issued pursuant thereto.
B. 
Each day, from the submittal by the violator of the false or inaccurate information to the Authority to the day of receipt by the Authority of a written correction by the violator, shall be an additional, separate and distinct violation.
C. 
The Authority shall assess a civil administrative penalty for violations described in this section based on the conduct of the violator at the midpoint of the following ranges except as adjusted pursuant to Subsection D below:
(1) 
For each intentional, deliberate, purposeful, knowing or willful act or omission by the violator, the civil administrative penalty shall be in an amount up to $50,000 per act or omission.
(2) 
For each other violation not identified pursuant to Subsection C(1) above for which the violator does not correct the violation within 10 days after becoming aware of the violation, the civil administrative penalty shall be in an amount up to $30,000.
(3) 
For each other violation not identified pursuant to Subsection C(1) above for which the violator corrects the violation within 10 days after becoming aware of the violation, the civil administrative penalty shall be in an amount up to $1,000.
D. 
The Authority may, in its discretion, adjust the amount determined pursuant to Subsection C above to assess a civil administrative penalty in an amount no greater than the maximum amount, nor less than the minimum amount in the range on the basis of the following factors:
(1) 
The compliance history of the violator.
(2) 
The number, frequency and severity of the violations.
(3) 
The measures taken by the violator to mitigate the effects of the current violation or to prevent future violations.
(4) 
The deterrent effect of the penalty.
(5) 
The cooperation of the violator in correcting the violation, remedying the damage caused by the violation and ensuring that the violation does not reoccur.
(6) 
Any unusual or extraordinary costs or impacts directly or indirectly imposed on the public or the environment as a result of the violation.
(7) 
Any impacts on the receiving water, including stress upon the aquatic biota, or impairment of receiving water uses, such as for recreational or drinking water supply, resulting from the violations.
(8) 
Other specific circumstances of the violator or violation.
A. 
The Authority may assess a civil administrative penalty pursuant to this section against each violator who refuses, inhibits or prohibits immediate lawful entry and inspection of any premises, building or place by any authorized Authority representative.
B. 
Each day, from the initial day of failure by the violator to allow immediate lawful entry and inspection to the day of receipt by the Authority of written notification from the violator that the violator will not refuse, inhibit or prohibit immediate lawful entry and inspection, shall be an additional, separate and distinct violation.
C. 
The Authority shall assess a civil administrative penalty for violations described in this section at the midpoint of the following ranges except as adjusted pursuant to Subsection D below:
(1) 
For refusing, inhibiting or prohibiting immediate lawful entry and inspection of any premises, building or place for which an administrative order or permit exists under the Water Pollution Control Act or the New Jersey Underground Storage of Hazardous Substances Act, the civil administrative penalty shall be in an amount up to $50,000; and
(2) 
For any other refusal, inhibition or prohibition of immediate lawful entry and inspection, the civil administrative penalty shall be in an amount up to $8,000
D. 
The Authority may, in its discretion, adjust the amount determined pursuant to Subsection C above to assess a civil administrative penalty in an amount no greater than the maximum amount nor less than the minimum amount in the range on the basis of the following factors:
(1) 
The compliance history of the violator.
(2) 
The number, frequency and severity of the violations.
(3) 
The measures taken by the violator to mitigate the effects of the current violation or to prevent future violations.
(4) 
The deterrent effect of the penalty.
(5) 
The cooperation of the violator in correcting the violations, remedying the damage caused by the violation and ensuring that the violation does not reoccur.
(6) 
Any unusual or extraordinary costs or impacts directly or indirectly imposed on the public or the environment as a result of the violation.
(7) 
Any impacts on the receiving water, including stress upon the aquatic biota, or impairment of receiving water uses, such as for recreational or drinking water supply, resulting from the violations.
(8) 
Other specific circumstances of the violator or violation.
A. 
The Authority may assess a civil administrative penalty pursuant to this section against each person, user and/or industrial user, who approves, endorses, allows construction or operation to commence or proceed, builds, modifies, installs, replaces, expands or operates a facility or treatment works, as defined by N.J.A.C. 7:14A, without the proper authorization or in violation of any rule, administrative order, sewer connection ban or permit issued or imposed pursuant to the Water Pollution Control Act.
B. 
The Authority shall determine the amount of the civil administrative penalty for violations described in this section based on the seriousness of the violation and the conduct of violator based on the following:
(1) 
For any unauthorized approval, endorsement or allowance to commence or proceed to build, modify, install, replace, expand or operate a facility or treatment works, the civil administrative penalty shall be in an amount determined as follows:
Civil Administrative Penalty = (seriousness) x (conduct) x $1
(a) 
The seriousness factor shall be equal to 1/2 of the design flow (in gallons per day) indicated in the CP-1 Permit Application for that facility or project, or if there is no CP-1 Permit Application or if the design flow is not indicated on the CP-1 Application, then from the Contributory Design Flow table in N.J.A.C. 7:9-1; and
(b) 
The conduct factor is either:
[1] 
1.00 if the conduct is intentional, deliberate, purposeful, knowing or willful; or
[2] 
0.75 for any other conduct.
(c) 
Each approval, endorsement or allowance to commence or proceed shall be considered an additional, separate and distinct violation.
(2) 
For the building, installation, modification, replacement or expansion of a facility or treatment works without the required Authority approval, the civil administrative penalty shall be in an amount determined as follows:
Civil Administrative Penalty = (seriousness) x (conduct) x $1
(a) 
The seriousness factor shall be equal to 1/2 of the design flow (in gallons per day) as determined from the CP-1 Permit Application for that facility or project, or if there is no CP-1 Permit Application or if the design flow is not indicated on the CP-1 Application, then from the Contributory Design Flow table in N.J.A.C. 7:9-1.
(b) 
The conduct factor is either:
[1] 
1.00 if the conduct is intentional, deliberate, purposeful, knowing or willful; or
[2] 
0.75 for any other conduct.
(c) 
Each day or part thereof that the construction of the facility or treatment works continues without the required Authority approval shall be considered an additional, separate and distinct violation.
(3) 
For the operation of any facility or treatment works, the civil administrative penalty shall be in an amount equal to, at the sole discretion of the Authority, either:
(a) 
Twice the total penalty for the illegal building, installation, modification, replacement or expansion of a facility or treatment works calculated pursuant to Subsection B(2) above; or
(b) 
Equal to the product of the following equation:
Civil Administrative Penalty = (seriousness) x (conduct) x $1
[1] 
The seriousness factor shall be equal to the total design flow (in gallons per day) as determined from the CP-1 Permit Application for that facility or project, or if there is no CP-1 Permit Application or if the design flow is not indicated on the CP-1 Application, then from the Contributory Design Flow table in N.J.A.C. 7:9-1.
[2] 
The conduct factor shall be either:
[a] 
1.00 if the conduct is intentional, deliberate, purposeful, knowing or willful; or
[b] 
0.75 for any other conduct.
[3] 
Each day or part thereof that the operation of the facility or treatment works continues without the required Authority approval shall be considered an additional, separate and distinct violation.
A. 
The Authority may assess a civil administrative penalty pursuant to this section against each violator who fails to carry out monitoring or sampling activities or to discharge monitoring reports, baseline monitoring reports, monitoring report forms or sludge quality assurance reports required by the Water Pollution Control Act or the New Jersey Underground Storage of Hazardous Substances Act or any rule, water quality standard, effluent limitation, administrative order or permit issued pursuant thereto.
B. 
Each violation, including each parameter that is required to be monitored, sampled and reported and that is not monitored, sampled and reported, is an additional, separate and distinct violation. Each day during which a violation continues shall constitute an additional, separate and distinct violation.
C. 
Except as provided in Subsection D below, the Authority shall assess a civil administrative penalty for violation described in this section based on the conduct of the violator at the midpoint off the following ranges, except as adjusted pursuant to Subsection D below:
(1) 
For any intentional, deliberate, purposeful, knowing or willful act of omission by the violator, the civil administrative penalty shall be in amount up to $50,000; or
(2) 
For any unintentional but foreseeable act or omission by the violator, the civil administrative penalty shall be in amount up to $40,000; or
(3) 
For any other violations, the civil administrative penalty shall be in an amount up to $20,000
D. 
The Authority may, in its discretion, adjust the amount determined pursuant to Subsection C above to assess a civil administrative penalty in an amount no greater than the maximum amount nor less than the minimum amount in the range on the basis of the following factors:
(1) 
The compliance history of the violator.
(2) 
The number, frequency and severity of the violations.
(3) 
The measures taken by the violator to mitigate the effects of the current violation or to prevent future violations.
(4) 
The deterrent effect of the penalty.
(5) 
The cooperation of the violator in correcting the violations, remedying the damage caused by the violation and ensuring that the violation does not reoccur.
(6) 
Any unusual or extraordinary costs or impacts directly or indirectly imposed on the public or the environment as a result of the violation.
(7) 
Any impacts on the receiving water, including stress upon the aquatic biota, or impairment of receiving water uses, such as for recreational or drinking water supply, resulting from the violations.
(8) 
Other specific circumstances of the violator or violation.
A. 
The Authority may assess a civil administrative penalty pursuant to this section against each violator who fails to pay a fee when due pursuant to the Water Pollution Control Act or the New Jersey Underground Storage of Hazardous Substances Act.
B. 
Each day a fee is not paid after it is due shall constitute an additional, separate and distinct violation.
C. 
The Authority shall determine the amount of the civil administrative penalty for violations described in this section based on an amount equal to the unpaid fee, up to a maximum of $50,000 per violation.
A. 
The Authority may assess a civil administrative penalty pursuant to this section of not more than $50,000 for each violation of each provision of the rules in N.J.A.C. 7:18 governing laboratory certification and standards of performance (N.J.A.C. 7:18), adopted pursuant to the Water Pollution Control Act.
B. 
Each violation of each provision of each rule shall be an additional, separate and distinct violation. Each day during which a violation continues shall constitute an additional, separate and distinct violation.
C. 
The Authority shall determine the amount of the civil administrative penalty for conduct and violation described in provisions of N.J.A.C. 7:18 referenced in this section on the basis of the provision violated and the frequency of the violation as follows:
Civil Administrative Penalty Amount
Citation
(N.J.A.C.)
First Violation
Second Violation
Third and Subsequent Violations
7:18-2.1
$10,000
$25,000
$50,000
7:18-2.3(f)liv
$10,000
$25,000
$50,000
7:18-2.4(d)
$10,000
$25,000
$50,000
7:18-2.7
$300
$900
$3,000
7:18-2.8
$300
$900
$3,000
7:18-2.9
$300
$900
$3,000
7:18-2.10(a)
$300
$900
$3,000
7:18-2.10(c)
$300
$900
$3,000
7:18-2.10(d)
$300
$900
$3,000
7:18-2.10(f)
$100
$300
$1,000
7:18-2.10(g)
$10,000
$25,000
$50,000
7:18-2.11(a)
$10,000
$25,000
$50,000
7:18-2.11(d)
$10,000
$25,000
$50,000
7:18-2.11(f)
$100
$300
$1,000
7:18-2.12(b)1
$100
$300
$1,000
7:18-2.12(b)2
$300
$900
$3,000
7:18-2.12(b)3
$300
$900
$3,000
7:18-2.12(b)4
$300
$900
$3,000
7:18-2.12(c)3
$300
$900
$3,000
7:18-2.12(c)5
$300
$900
$3,000
7:18-2.12(c)12
$10,000
$25,000
$50,000
7:18-2.14
$100
$300
$1,000
7:18-3
$300
$900
$3,000
7:18-4
$300
$900
$3,000
7:18-5
$300
$900
$3,000
7:18-6
$300
$900
$3,000
A. 
When the Authority determines that the violator has gained an economic benefit from a violation, the Authority shall, in addition to any other civil administrative penalty assessed pursuant to this chapter, include as part of a civil administrative penalty the economic benefit (in dollars) which the violator has realized as a result of not complying, or by delaying compliance, with the requirements of the Water Pollution Control Act, the New Jersey Underground Storage of Hazardous Substances Act or any rule, water quality standard, effluent limitation, administrative order or permit issued pursuant thereto.
B. 
Economic benefit shall include:
(1) 
The amount of savings realized from avoided capital or noncapital costs resulting from the violation;
(2) 
The return earned or that may be earned on the amount of the avoided costs;
(3) 
Any benefits accruing to the violator as a result of a competitive market advantage enjoyed by reason of the violation; and
(4) 
Any other benefits resulting from the violation.
C. 
The Authority shall consider the following factors in determining economic benefits:
(1) 
The amount of capital investments required, and whether they are one-time or recurring.
(2) 
The amount of one-time nondepreciable expenditures.
(3) 
The amount of annual expenses.
(4) 
The useful life of capital.
(5) 
Applicable tax, inflation and discount rates.
(6) 
The amount of low interest financing, the low interest rate, and the corporate debt rate.
(7) 
Any other factors relevant to economic benefit.
D. 
If the total economic benefit was derived from more than one violation, the total economic benefit amount may be apportioned among the violations from which it was derived so as to increase each civil administrative penalty assessment to an amount no greater than $50,000 per violation.
A. 
The Authority may assess a civil administrative penalty pursuant to this section against each violator who fails to completely respond to an information request or administrative subpoena or destroys records relating to a discharge to surface water within five years of the discharge or to a discharge to groundwater at any time without the prior written permission of the Authority.
B. 
Each day that the violator does not fully respond to any item in an information request or administrative subpoena and each item in an information request or administrative subpoena that is not fully responded to shall be an additional, separate and distinct violation.
C. 
The Authority shall assess a civil administrative penalty for each failure to completely respond to an information request or administrative subpoena in an amount up to $50,000 based on the following factors:
(1) 
The substantive responsiveness of the violator's response to the information request or administrative subpoena.
(2) 
Number of items in the information request or administrative subpoena which the violator attempted to respond to.
(3) 
Number of items in the information request or administrative subpoena which the violator did not respond to.
(4) 
The timeliness of the violator's response.
(5) 
Any other relevant factors.
D. 
The Authority shall assess a civil administrative penalty for the destruction of records in violation of P.L. 1990, c. 28, Section 15,[1] based on the conduct of the violator at the midpoint of the following ranges:
(1) 
For each intentional, deliberate, purposeful, knowing or willful act or omission by the violator, the civil administrative penalty shall be in an amount up to $50,000; and
(2) 
For each other violation not identified pursuant to Subsection D(1) above, the civil administrative penalty shall be in the amount up to $30,000.
[1]
Editor's Note: See N.J.S.A. 58:10A-10.3.
A. 
A person may be entitled to an affirmative defense to liability for an assessment of a civil administrative penalty pursuant to § 331-72 of this chapter; for liability for assessment of a civil penalty pursuant to § 331-72 of this chapter; or for any other monetary civil damages or monetary penalty assessed by the Authority pursuant to other enforcement actions available to the Authority under §§ 331-72 and 331-74 of this chapter, assessed due to a violation of an effluent limitation occurring as a result of an upset, an anticipated or unanticipated bypass, or a testing or laboratory error. A person shall be entitled to an affirmative defense only if, in the determination of the Authority, the person satisfies the provisions of Subsection B, C, E or F, as applicable, of this section. The terms "upset" and "bypass" shall be as defined in Article II of these Rules and Regulations.
B. 
A person asserting an upset as an affirmative defense pursuant to this section, except in the case of an approved maintenance operation, shall notify the Authority of an upset within 24 hours of the occurrence or of becoming aware of the occurrence and, within five days thereof, shall submit written documentation, including properly signed, contemporaneous operating logs, or other relevant evidence, on the circumstances of the violation and demonstrating, as applicable, that:
(1) 
The upset occurred, including the cause of the upset and, as necessary, the identity of the person causing the upset.
(2) 
The permitted facility was at the time being properly operated.
(3) 
The person submitted notice of the upset as required pursuant to this section or, in the case of an upset resulting from the performance by the permittee of maintenance operations, the permittee provided prior notice and received an approval therefor from the Authority.
(4) 
The person complied with any remedial measures required by the Authority.
C. 
A person asserting a bypass as an affirmative defense pursuant to this section, except in the case of an approved maintenance operation, shall notify the Authority of an upset occurrence and, within five days thereof, shall submit written documentation, including properly signed, contemporaneous operating logs or other relevant evidence on the circumstances of the violation, and demonstrating that:
(1) 
The unanticipated bypass occurred, including the circumstances leading to the bypass.
(2) 
The permitted facility was at the time being properly operated.
(3) 
The person submitted notice of the bypass as required pursuant to this section.
(4) 
The person complied with any remedial measures required by the Authority.
(5) 
The bypass was unavoidable to prevent loss of life, personal injury or severe property damage.
(6) 
There was no feasible alternative to the bypass such as the use of auxiliary treatment facilities, retention of untreated wastes or maintenance during normal periods of downtime, except that the provisions of this subsection shall not apply to a bypass occurring during normal periods of equipment downtime or preventive maintenance if, on the basis of the reasonable engineering judgment of the Authority, backup equipment should have been installed to avoid the need for a bypass.
D. 
Nothing contained in Subsection B or C of this section shall be construed to limit the requirement to comply with self-monitoring and reporting of these rules and regulations.
E. 
A person may assert an anticipated bypass as an affirmative defense pursuant to this section only if the person provided prior notice to the Authority, if possible, at least 10 days prior to the date of the bypass, and the Authority approved the bypass, and if the person is able to demonstrate that:
(1) 
The bypass was unavoidable to prevent loss of life, personal injury or severe property damage; and
(2) 
There was no feasible alternative to the bypass such as the use of auxiliary treatment facilities, retention of untreated wastes or maintenance during normal periods of downtime, except that the provisions of this subsection shall not apply to a bypass occurring during normal periods of equipment downtime or preventive maintenance if, on the basis of the reasonable engineering judgment of the Authority, backup equipment should have been installed to avoid the need for a bypass.
F. 
A person asserting a testing or laboratory error as an affirmative defense pursuant to this section shall have the burden to demonstrate, to the satisfaction of the Authority, that a serious violation involving the exceedance of an effluent limitation was the result of unanticipated test interferences, sample contamination, analytical defects or procedural deficiencies in sampling or other similar circumstances beyond the control of the permittee.
G. 
An assertion of an upset, a bypass or a testing or laboratory error as an affirmative defense pursuant to this section may not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance or careless or improper operation.
H. 
If the Authority determines, pursuant to the provisions of this section, that a violation of an effluent limitation was caused by an upset, a bypass or a testing or laboratory error, the Administrative Coordinator and/or Executive Director shall waive any mandatory civil administrative penalty required to be assessed pursuant to these rules and regulations for such violation, as well as any other civil or administrative penalty or civil damages which the Authority is entitled to assess or seek as a result of such violation.
A. 
The Authority has adopted, attached hereto, and incorporated by reference into these rules and regulations an Enforcement Response Plan. The purpose of the Enforcement Response Plan is to set forth procedures and guidelines summarizing how the Authority will investigate and respond to instances of industrial user noncompliance.[1]
[1]
Editor's Note: The Enforcement Response Plan is on file in the town offices.
B. 
The Enforcement Response Plan includes a section summarizing the enforcement responses to be taken by the Authority (the Enforcement Response Summary). The Enforcement Response Plan and Enforcement Response Summary contained therein are to be used to encourage prompt and efficient implementation of response actions. They are not intended to restrict the Authority's ability to apply other enforcement responses available by law when warranted by the facts and circumstances of any particular case.
The Authority shall publish, in the largest daily newspaper published in the municipality in which the WNYMUA is located, the industrial users which, at any time during the previous 12 months, were in significant noncompliance with applicable pretreatment requirements. For the purposes of this provision, an industrial user is in significant noncompliance if its violation meets one or more of the following criteria:
A. 
Serious violation for the same hazardous pollutant or the same nonhazardous pollutant at the same discharge point source in any two months of any six-month period.
B. 
Exceedance of the monthly average or, in case of a pollutant for which no monthly average has been established, the monthly average of the daily maximum of an effluent limitation for the same pollutant at the same discharge point source by any amount in any four months of any six-month period.
C. 
Chronic violations of wastewater discharge limits, defined here as those in which 66% or more of all of the measurements taken during a six-month period exceed (by any magnitude) the daily maximum limit or the average limit for the same pollutant parameter.
D. 
Technical review criteria (TRC) violations, defined here as those in which 33% or more of all of the measurements taken for each pollutant parameter during a six-month period equal or exceed the product of the daily maximum limit or the average limit multiplied by the applicable TRC (TRC equals 1.4 for BOD, TSS, fats, oil and grease and 1.2 for all other pollutants except pH).
E. 
Any other violations of a pretreatment effluent limit (daily maximum or longer-term average) that the WNYMUA determines has caused, alone or in combination with other discharges, interference or pass-through (including endangering the health of POTW personnel or the general public).
F. 
Any discharge of a pollutant that has caused imminent endangerment to human health, welfare or to the environment or has resulted in the POTW's exercise of its emergency authority under Section 403.8(f)(1)(vi)(B) to halt or prevent such a discharge.
G. 
Failure to meet, within 90 days after the schedule date, a compliance schedule milestone contained in a local control mechanism or enforcement order for starting construction, completing construction or attaining final compliance.
H. 
Failure to provide, within 30 days after the due date, required reports such as baseline monitoring reports, ninety-day compliance reports, periodic self-monitoring reports, and reports on compliance with compliance schedules.
I. 
Failure to submit a completed periodical/self- monitoring report in any two months of any six-month period.
J. 
Failure to accurately report noncompliance.
K. 
Any other violation or group of violations which the WNYMUA determines will adversely affect the operation or implementation of the local pretreatment program.